DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 
 ex-FR, USN
Docket No. ND05-00361

Applicant’s Request

The application for discharge review was received on 20041227.  The Applicant requests the characterization of service received at the time of discharge changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 200050511.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Since leaving the military in 1995, I have been a productive member of society.  I have held a consistent job since my departure.  I have also paid back every penny I owed the Navy.  I have been working on my Bachelor’s degree in business also.  I believe upgrading my discharge will allow me to be available to be active in more community affairs.  I appreciate the opportunity for an upgrade.  Thank you.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s resumé
Applicant’s unofficial transcript (3 pages)
Job/character reference, undated
Character reference, dated January 27, 2005
Character reference, dated January 18, 2005

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	930813 - 940523	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940524			Date of Discharge:  950309

Length of Service (years, months, days):

	Active:    00 09 10	Does not exclude lost time
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4 (24 months extension)

Education Level:  12				AFQT:  75

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)			Behavior:  2.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  71

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

940902:	Applicant to unauthorized absence 0730, 940902.

940907:	Applicant from unauthorized absence 0630, 940907 (4 days/surrendered).  Applicant’s EAOS changed to 980528.

940922:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 940902 to 940907.
	Award: Forfeiture of $416 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2, oral reprimand.  No indication of appeal in the record.

940923	Applicant checks out of NUCPOWSCOL, NTC Orlando.

940923	Applicant checks into NTC Orlando (transients)

941024	Applicant checks out of NTC Orlando enroute to USS Shenandoah AD-44. 

941110:	Applicant to unauthorized absence 0001, 941110.

941115:	Mental Health Clinic, Tinker AFB, OK: S:  Applicant referred by his recruiter because he is suppose to leave the local area tomorrow, proceed to Norfolk, VA and ship out on a destroyer tender.  There is a problem: He has a morbid fear of being on board ship or on a boat.  A: AXIS I: i. Simple phobia (boats, ships), ii.  Sleep disorder, NOS (somnambulism).  P: Recommendations: i) as a result of the above two diagnoses the member’s ability to function effectively in the naval service is severely impaired.  ii) I believe that both diagnoses are best managed through administrative rather than medical board channels.  iii) The USN regulation on medical boards, Article 18-25 “conditions not considered a physical disability”, specifically lists somnambulism as one such condition (re: not requiring a medical board).  iv) While that Article does not specifically list ship-phobia as such a condition, it does not that those conditions are not limited to those listed.  In my experience, such a phobia should be managed through administrative, rather than medical board channels.  [By analogy, Air Force Reg 39-10 (“administrative separation of airmen) _____ 5-lli, specifically lists “fear of flying” as an administratively separable rather than medically boardable condition.]  v) While the final decision for administrative separation resides with the member’s commander, I would strongly recommend such an action.  This is especially indicated given (1) the chronicity of the problems, & (2) the member’s poor motivation for treatment within the Navy.  vi) Our local Navy clinic (for Navy wing on Tinker AFB) spoke with proper authority in Memphis, TN.  They stated that the member should complete execution of his orders to Norfolk, & allow his gaining command to take appropriate action.  The member was so informed by myself.  vii) I will talk with gaining commander when Applicant gives me the unit’s identity (ie unit number, etc).

950118:	Applicant from unauthorized absence 2100, 950118 (70 days/surrendered at Transient Personnel Unit.  Applicant’s EAOS changed to 980801.

950204:	Applicant transferred to USS SHENANDOAH (AD 44).

950211:	Medical Examination:  Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past.  Psychiatric evaluation not required.  Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense.  Applicant is fit for duty and should be held responsible for his actions.

Applicant’s separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950309 under other than honorable conditions in lieu of a trial by court-martial (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by 70 days of unauthorized absence, which violates Article 86 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant’s discharge characterization accurately reflects his service to this country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, and certification of non-involvement with civil authorities, serve as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s statements concerning post-service conduct, accompanied by three letters of recommendation without documented evidence, were found not to mitigate the offense for which he was discharged.  Relief not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article  86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023